Orissa High Court
Daitary Samantaray vs The Divisional Forest Officer, ... on 26 July, 1993
Equivalent citations: 1994CRILJ963, 1993(II)OLR295
JUDGMENT G.B. Pattnaik, J.
1. The petitioner is the owner of an ambassador car bearing registration No. ORU 7621. The said car having been confiscated by the Authorised Officer under the provisions of the Orissa Forest Act and the said order of confiscation having been affirmed by the District Judge in appeal against the order of the Authorised Officer, the petitioner has approached this Court. The order of the Authorised Officer has been annexed as Annexure-3 and that of the appellate authority has been annexed as Annexure-4.
2. On 19-12-1991, the Forester, Kuliana Forest, found that 56 pieces of Peasal Timbers were being transported by a truck bearing registration number OSU 2371 and the said truck was being escorted by a car bearing registration number ORU 7621. Since for transporting the timbers there was no permission of the competent authority under the provisions of the Orissa Timber and other Forest Produce Transit Ruies, and since the Forester formed the opinion that Forest offence has been committed as Rules 4, 12 and 21 of the Rules have been violated and there has been abetment of the commission of forest offence Under Section 85 of the Orissa Forest Act, he seized both the vehicles together with the timbers which were being transported in the truck and reported the matter for initiation of a confiscation proceeding Under Section 56of the Orissa Forest Act. On the basis of the said report, the Authorised Officer-cum-Assistant Conservator of Forests. Baripada Division initiated the confiscation proceeding and came to the conclusion that the ambassador car bearing registration number ORU 7621 having abetted the commission of forest offence Under Section 85 of the Orissa Forest Act, as it was escorting the truck carrying Peasal and Kaima timbers without any valid transit permit, the truck as well as the car is liable for confiscation and accordingly passed the order of confiscation of the car bearing registration number ORU 762;1. The petitioner carried the matter in appeal and the learned District Judge having dismissed the appeal and having affirmed the order of confiscation, the present writ application has been filed.
3. The learned counsel for the petitioner contends that the car in question not having been found to be used for the commission of any forest offence, the provision of Section 66 of the Orissa Forest Act cannot be made applicable and, therefore, no order of confiscation could have been passed in relation to the said car in question. He further contends that the appellate authority committed gross error in confirming the order of confiscation on a finding that the car was used in abetting the commission of a forest offence and, therefore, the same is liable to be confiscated.
Learned Additional Government Advocate, on the other hand, contends that even though the car might not have been used in the commission of forest offence, but since the offenders were escorting the truck which was actually involved in the commission of forest offence by travelling in the car, the car must be said to have been used in the commission of forest offence and, therefore, the order of confiscation is unassailable,
4. The correctness of the rival submissions depends upon an interpretation of the provisions of Sections 56 and 35 of the Orissa Forest Act. But before considering the said question, it would be appropriate to notice the admitted facts which have been found by the authorities below. On the relevant date the truck bearing registration number OSU 8371 was carrying 3 pieces of Peasal and Kaima green logs with- out any valid transit permit for the same. One ambassador car bearing registration number ONU 7621 was going ahead of the truck and when the forest officials detained both the vehicles and searched the car as well as the truck, they found some forged papers from the car and the truck which was carrying the timbers did not have any transit permit for the trans- portation of the timbers. On these datas the Authorised Officer came to the conclusion that the car was escorting the truck and. therefore, it must be held that the car was used in abetting the commission of a forest offence and accordingly the order of confiscation was passed.
5 Now coming to the contentions raised by the counsel for parties, the only provision relevant for the purpose is Section 56 of the Orissa Forest Act. Under Section 56 (1) the Forest Officer has the power to seize any forest produce when he has reasons to believe that a forest offence has been committed in respect of the said forest produce and he has also the power to seize all tool .ropes chains, boats, vehicles or cattle used in commission of such forest offence. Under Sub-section (2-a) of Section 56, when an authorised officer seizes any forest produce under Sub-section (1) of Sec 56 or where any such forest produce is produced before him under Sub-section (2) and he is satisfied that a forest offence has been committed in respect thereof, then the said authorised officer may order confiscation of the forest produce so seized or produced together with all tools, ropes, chains, boats, vehicles or cattle used in committing such offence. Sub-section (2-b) of Section 56 is the procedure to be followed before an order of confiscation is passed. We are not concerned with other sub-sections of the said Section 56 in the present case. For proper appreciation of the point in issue, the provisions of Sac. 56(1) and (2-b) are extracted hereunder in extenso :
"56. Seizure of property liable to confiscation :
(1) When there is reason to believe that a forest offence has been committed in respect of any forest produce, such produce together with all tools, ropes, chains, boats, vehicles or cattle used in committing any such offence may be seized by any Forest Officer or Police Officer.
(2) a) ... ... ...
(2-a) Where an Authorised Officer seizes any forest produce under Sub-section (1) or where any such forest produce is produced before him under Sub-section (2) and he is satisfied that a forest offence has been committed in respect thereof, he may order confiscation of the forest produce so seized or produced together with all tools* ropes, chains, boats, vehicles or cattle used in committing such offence."
A plain reading of the aforesaid provisions makes it explicitly clear that an Authorised Officer can order confiscation of vehicles only when he is satisfied that a forest offence has been committed in respect of any forest produce and that the vehicle was used in committing such offence. The only provision for confiscation is there in Sub-section (2-a) of Section 56 of the Act and nowhere else. The question that arises for consideration is whether the ambassador car which was going ahead of the truck can be said to have been used in commission of a forest offence. Admittedly, the said ambassador car did not contain any forest produce nor any direct Sink has been established between the car and the truck which was carrying the forest produce. No doubt the forums below have noticed that some fake transit permits were seized from the car, but recovery of some fake papers from the car cannot be held to be sufficient to come to a conclusion that the car was used in committing the forest offence. The expression "used" must mean that the vehicle was physically used for the commission of the offence. In other words, in a given case where the truck was carrying timbers without any transit permit and thereby was used in the commission of forest offence, and a car which was proceeding with persons, who, with guns and revolvers had been making the route safe for the truck to follow, may be said to be "used in commission of a forest offence". There must be some direct connection between the forest produce in respect of which the forest offence is committed and the vehicle which was used in commission of such offence. In the absence of any such direct connection, merely because a car was going ahead and a truck was following, it is not possible to hold that the car was used in commission of a forest offence so as to attract the provisions of Sub- sec, (2-a) of Section 56 of the Orissa Forest Act. In this view of the matter since there has been no direct link between the forest produce, namely, the timbers which were being carried in the truck and in respect of which the forest offence has been committed with the user of car for commission of the said offence, the seizure of the car by the forest authority and confiscation of the same must be held to be without jurisdiction and such an order of confiscation cannot be sustained in law.
6. The appellate authority referring to the provision of Section 85 of the Orissa Forest Act has held that the car must be held to have abetted the commission of forest offence and, therefore, if the vehicle that is used in the commission of forest offence could be confiscated, the car also should be confiscated. We are unable to accept the conclusion of the appellate authority. On the findings arrived at by the Authorised Officer as well as the appellate authority.it is difficult for us to hold that the car can at all be said to have abetted the commission of forest offence Then again, Section 85 provides that whoever abets the commission of a forest offence shall be punished with the punishment provided for the offence. The provision of confiscation contained in Sub-section (2-a) of Section 56 is not the punishment for commission of an offence by an accused and, at any rate, a vehicle which was not used for commission of forest offence in respect of the forest produce that was seized, the order of confiscation cannot be passed under Sub-section (2-a) of Section 56 by taking recourse to Section 85 of the Orissa Forest Act. The appellate authority, therefore, committed gross error of law in upholding the order of confiscation by taking recourse to Section 85 of the Act In the afore- said premises, the order of confiscation passed by the Authorised Officer and affirmed by the appellate authority must be held to be without jurisdiction. We accordingly quash the orders under Annexures-3 and 4 and direct release of the car bearing registration number ORU 7621 forthwith in favour of the petitioner. The writ application is allowed.
There will, however, be no order as to costs.
B.N. Dash, J.
I agree.